2207993 (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant had arrived in Australia in 2010 and subsequently applied for and was granted a Protection visa. Later, during an application for Australian citizenship, inconsistencies in his identity information, including his name and date of birth, were identified. This led to an Identity Assessment Report concluding that the identity used for the Protection visa application was not supported, and ultimately, a Notice of Intention to Consider Cancellation of his Resident Return visa was issued under section 116 of the *Migration Act 1958* (Cth).

The primary legal issue before the Tribunal was whether the Minister was satisfied that the applicant’s identity was not established, as required by section 116(1AA) of the *Migration Act*. This provision allows for visa cancellation if the Minister is not satisfied as to the visa holder's identity, particularly where there is contradictory or inconsistent information that prevents a conclusion about the person's true identity. The Tribunal was required to determine if the inconsistencies in the applicant's provided information regarding his name, date of birth, and family composition met this threshold for cancellation.

The Tribunal reasoned that while the applicant had provided inconsistent and incorrect information about his identity over many years, including admissions and apologies for this misinformation, the circumstances of his psychological and mental health, as supported by his treating psychologist's report and other documentation, provided relevant context. The Tribunal noted that these factors, along with the substantial length of time the applicant had resided in Australia, were relevant considerations. Although it was open for the Department to consider other grounds for cancellation based on the evidence presented, the Tribunal concluded that the ground for cancellation under s 116(1AA) was not made out in this instance.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa and substituted a decision not to cancel the visa.